09 April 2012

MPAA Sides with Gay Porn Studio Flava Works in Copyright Case

This could become big. The Motion Picture Association of America has become involved in a copyright case submitted by Miami-based Flava Works (nsfw), the Black and Latino gay porn studio. With the MPAA, Google and Facebook submitting amicus briefs, the litigation has been described as "one of the hottest cases on the [federal] docket" by the Hollywood Reporter.

The case is Flava Works v. Gunter, pending before the 7th Circuit Court of Appeals. In 2010, Flava Works sued MyVidster.com and its owner Marques Gunter. The suit alleged copyright and trademark infringement by the social video bookmarking site which allows users to upload embedded links to porn videos. United States District Judge John F. Grady ordered a preliminary injunction, which is currently on appeal.

Flava Works is also suing the web host Voxel.net and LeaseWeb.com for failing to remove MyVidster.com from its servers despite dozens of DMCA notices.

The MPAA submitted an amicus brief on Friday, reports THR. "Just as importantly, the case presented an opportunity to address the so-called 'server test' offered by the 9th Circuit in the Perfect 10 cases. In those disputes, it was held that because Google and Amazon held no copies of images from the adult publisher Perfect 10 on its own servers, they couldn't be held liability for merely linking to images."

Last week, the MPAA responded and called myVidster "an unlicensed on-demand, internet-video service that generated advertising and other revenues by attracting an audience for infringing content." The studio trade group took the opportunity to attack the "server test," which it says was contrary to the "language and legislative history of the Copyright Act, which affords copyright owners a broad and technological neutral display right."

If true, the copyright liability for making embed links or hosting them could be significant. In this particular case, the MPAA says that the district judge correctly determined that myVidster knew of direct infringement, and rather than discouraging the behavior.

Google and Facebook have taken the opposite side in the case. The two tech giants jointly submitted their own amicus brief, arguing that the Seventh Circuit Court of Appeals overturn the injunction.

Industry observers have taken notice of the heavy hitters in the case and believe the case could become a precedent: "If next big appellate decision involves gay erotica," notes THR. "None of the interested parties seem to mind."

A condition for DMCA safe harbor eligibility requires that service providers "adopt and reasonably implement" a repeat infringer policy that provides for termination of users' accounts "in appropriate circumstances." MyVidster does NOT have a repeat infringer policy and they allow the same users to post the same videos for which DMCA Take down notices have been sent. Turning a blind eye and intentionally ignoring theft is not protected by law.